Failure to obtain the adequate insurance and registrants risk mitigation “coverage” is causal to the collapse of the private label securities markets. Bad loans will hurt earnings and eventually drive a pool into a liquidated short sale as a distressed asset. Bad loans that exceed the markets demand for a robust condition are an indication of the secondary having exceeded its tolerance for quality and risk mitigation.
Mortgages originated under secondary market schemes involving the lender and a third party, counter party or multiple third parties to counter party transfers. The lender originating the mortgage is the befitting party debited the ABA wire credited into the borrower settlement. Under UCC Article 9 possession of collateral is sufficient to perfect and no statutory requirements’ exist to record assignments. Transferring a loan to honor a request for payoff is not all that uncommon and should be free of restraint, that is, regardless of market conditions. Lenders cannot harbor a payoff demand due to a poorly timed market. The courts developed rule for perpetuity, adhesion and executory agreements circa seventeenth century. This so restrict any power to control perpetually the ownership and possession of his or her property and to ensure the transfer-ability of property. So consider now the dilemma with recording transfers absent of any recorded assignment. It appears to be an overrated argument – attacking the lack of an early assignment. The required recording for transfer is staunchly avoided early on and serendipitous when related parties transfer among themselves in a timely foreclosure. One can see the conveniences in using a nominee Mers Corp for the benefit of the party’s agreement and understanding common to their shared interests. Any requirement for transfer to future successor that mandates an arm’s length third party purchaser is where a problem arises.
The problematic issue occurs where a future transfer and sale of a mortgage is conditioned to a “final sale” and subsequent recorded assignment. Therein the demand imposes a condition for sale; albeit not one in the same with a conditional sale. A sale to a third party purchaser of value conditioned by timing in a down market is a possible restraint on alienation.
Claims the lender broke a binding contract subject to breach are made in claims for any executory provisions here a lack of missing “capacity” precludes enforcement. Economic and legal capacity is conditional should it emerge a precedent for satisfaction.
A demand is understood to have full effect of the agreement that it wished to impart from, again with no restraints and shall not cause the contract to be viewed as burdensome or unduly biased subject to a condition and hence fall under an executory contract.If such enforcement has the effect of hindering or circumventing a timely payoff request the holder lacking capacity at that time and place the demand was served cannot avoid the some notice or least disclosure for assets impairment.Defendants’ are conducting a sale that under statue must record a bonefide transfer to a third party purchaser of value. In doing so a variety of issues arise that cites foreclosure procedures are burden by restraints for which a variety of errors and omissions claims and deceptive practices argument subject the foreclosing trustee “counsel” to a slew liabilities.